Citation Nr: 9923095
Decision Date: 08/16/99 Archive Date: 08/26/99
DOCKET NO. 98-06 146 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Wm. Kenan Torrans, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1961 to July
1963.
This matter arises from rating decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Indianapolis,
Indiana, which denied the benefit sought. The veteran filed
a timely appeal, and the case has been referred to the Board
of Veterans' Appeals (Board) for resolution.
In a substantive appeal submitted in April 1998, the veteran
requested a Travel Board hearing. However, later that same
month, the veteran, through his representative, waived his
right to that hearing. 38 C.F.R. § 20.704(e) (1998). The
veteran later submitted a July 1998 statement indicting that
he wished to waive his right to a Board hearing. The veteran
has submitted a valid waiver of his right to a Board hearing,
and the Board may proceed with appellate review. Id.
As a preliminary matter, the Board notes that the veteran's
claim for service connection for PTSD has been characterized
by the RO as an attempt to reopen a previously denied claim.
However, the Board would observe that after the veteran's
claim for service connection was first denied in September
1996, within a year of this decision, he submitted what may
be considered to be a Notice of Disagreement in February
1997. No Statement of the Case was issued. The record shows
that the veteran continued to submit evidence. The RO's
September 1996 decision is, therefore, not considered to have
been final. Accordingly, the Board will consider the
veteran's claim on the basis of all the evidence.
FINDING OF FACT
There is no competent medical evidence of a diagnosis of
PTSD.
CONCLUSION OF LAW
The veteran's claim for service connection for PTSD is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran contends that he is currently being treated for
PTSD and that he is entitled to service connection for this
disorder because he incurred PTSD in service or as a result
of service.
Service connection may be granted for a disability resulting
from a disease or injury that was incurred in or aggravated
by active service. See 38 U.S.C.A. § 1131 (West 1991);
38 C.F.R. § 3.303 (1998). If a condition noted during
service is not shown to be chronic, then continuity of
symptomatology after service is generally required for
service connection. See 38 C.F.R. § 3.303(b) (1998).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a); a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred. 38 C.F.R. § 3.304(f). 64 Fed. Reg. 32,807-8 (June
18, 1999). The Board notes that June 1999 changes to the
regulation at 38 C.F.R. § 3.304(f) were intended to provide
for relaxed adjudicative evidentiary requirements under 38
U.S.C. 1154(b) for establishing service incurrence of an
event, as required by the United States Court of Appeals for
Veterans Claims (Court) in Cohen v. Brown, 10 Vet. App. 128
(1997). Previously, the regulation required a clear
diagnosis of PTSD, credible supporting evidence that the
claimed in-service stressors actually occurred, and a link,
established by medical evidence, between the current medical
symptomatology and the claimed in-service stressors. See
38 C.F.R. § 3.304(f) (1998).
When a law or regulation changes after a claim has been
filed, but before the administrative or judicial appeal
process has been concluded, the version most favorable to the
veteran generally applies. Karnas v. Derwinski, 1 Vet. App.
308, 313 (1991). The Board will, therefore, consider the
facts of this case under both the version of 38 C.F.R.
§ 3.304(f) in effect when the veteran filed his claim, and
under the version in effect after June 18, 1999, and will
apply the version most favorable to the veteran, if there is
any difference in this case.
In reviewing a claim for service connection, the initial
question is whether the claim is well grounded. The veteran
has the "burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim is
well grounded." See 38 U.S.C.A. § 5107(a) (West 1991);
Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). A well-
grounded claim is a plausible claim, one which is meritorious
on its own or capable of substantiation. Such a claim need
not be conclusive, but only possible to satisfy the initial
burden of § [5107]." Murphy v. Derwinski, 1 Vet. App. 78,
81 (1997).
To establish that a claim for service connection is well
grounded, an appellant must demonstrate the incurrence of a
disease or injury in service, the existence of a current
disability, and a nexus or link between the in-service injury
or disease and the current disability. See Epps v. Gober,
126 F.3d 1465 (1997). Medical evidence is required to prove
the existence of a current disability, and to fulfill the
nexus requirement. Lay or medical evidence, as appropriate,
may be used to substantiate service incurrence of an injury
or disease. See Caluza v. Brown, 7 Vet. App. 498, 506
(1995); Layno v. Brown, 6 Vet. App. 465, 469 (1994).
In addition, the Court has indicated that a claim may be well
grounded based on the application of the rule for chronicity
and continuity of symptomatology, as set forth in 38 C.F.R.
§ 3.303(b). The Court held that the chronicity provision
applies where there is evidence, regardless of its date,
which shows that a veteran had a chronic condition either in
service or during an applicable presumption period, and that
the veteran still has such a condition. See Savage v. Gober,
10 Vet. App. 488, 495-97 (1997). That evidence must be
medical, unless it relates to a condition that the Court has
indicated may be attested to by lay observation. If the
chronicity provision does not apply (that is, if a chronic
disorder is not noted in service), a claim may still be well
grounded on the basis of 38 C.F.R. § 3.303(b) "if the
condition is observed during service or during any applicable
presumption period, continuity of symptomatology is
determined thereafter, and competent medical evidence relates
the present condition to that symptomatology." Savage, 10
Vet. App. at 495.
The veteran has maintained, through personal statements and
personal testimony, that he was treated for psychiatric
disorders including PTSD in service. However, his voluminous
clinical treatment records only show that he was treated for
rectal bleeding in service, and was eventually discharged due
to this problem. The service medical records are completely
negative for any psychiatric treatment, including PTSD.
The veteran also contends, including through his testimony at
a person hearing conducted in July 1998, that he is currently
being treated for PTSD. The post-service clinical treatment
records, including current VA outpatient treatment records,
fail to contain any diagnosis of PTSD. Although the medical
evidence does reflect treatment for psychiatric disorders,
primarily a bipolar disorder, the assigned psychiatric
diagnoses do not include PTSD. The Board observes that one
examiner noted that PTSD should be ruled out, but that
notation is not equivalent to either a clear diagnosis of
PTSD under the old version of the governing regulation, or to
a diagnosis of PTSD in accordance with the current version of
the regulation.
The medical evidence does not support the veteran's
assertions that he has been diagnosed with PSTD or that he
has received ongoing treatment for that disorder. In the
absence of such a diagnosis, the Board finds his claim to be
not well grounded. See 38 C.F.R. § 3.304(f) (June 18, 1999);
38 C.F.R. § 3.304(f) (1998). Accordingly, the veteran's
claim must be denied.
In addition, lay statements and testimony by the veteran that
he currently has PTSD do not constitute medical evidence. As
a lay person, the veteran is not competent to address an
issue requiring an expert medical opinion, to include medical
diagnoses or opinions as to medical etiology. See Moray v.
Brown, 5 Vet. App. 211, 214 (1995); Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992). Absent a diagnosis of PTSD,
verification of the veteran's claimed stressors, and a
medical nexus between those stressors and the diagnosed PTSD,
his claim is not well grounded and is denied. See Brammer v.
Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2
Vet. App. 141 (1992).
For the above reasons, it is the decision of the Board that
the veteran has failed to meet his initial burden of
submitting evidence of a well-grounded claim for service
connection for PTSD. The Board has not been made aware of
any additional relevant evidence which is available which
could serve to well ground the veteran's claim. As the duty
to assist is not triggered here, since the veteran has not
submitted a well-grounded claim, the Board finds that VA has
no obligation to further develop the veteran's claim. See
38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d
1483 (Fed. Cir. 1997).
The Board also recognizes that this issue is being disposed
of in a manner that differs from that employed by the RO.
The RO disposed of the veteran's claim on the merits, and
later on the basis of whether new and material evidence had
been submitted to reopen his claim. However, the Board has
found the veteran's claim to be not well grounded. In such
cases, the Court has held that "[w]hen an RO does not
specifically address the question of whether a claim is well
grounded, but rather, as here proceeds to adjudication on the
merits, there is no prejudice to the veteran solely from the
omission of the well-grounded analysis." Meyer v. Brown, 9
Vet. App. 425, 432 (1996). In this case, the outcome would
be no different whether the claim were decided on the merits
or whether it was found to be not well grounded.
ORDER
Evidence of a well-grounded claim not having been submitted,
service connection for PTSD is denied.
TRESA M. SCHLECT
Acting Member, Board of Veterans' Appeals